Delhi District Court
Santra Devi vs Pawan Kumar on 26 March, 2022
IN THE COURT OF MS. DIVYA MALHOTRA: METROPOLITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI
SANTRA DEVI VS PAWAN KUMAR
JUDGMENT
Registration no. of the Case 1116/2016
Name & Address of the Complainant Santra Devi
W/o Sh. Jagbir Singh
R/o Gali No. 10, Gautam Colony,
Narela, Delhi110040
Name & Address of the Accused Pawan Kumar
S/o Sh. Suraj Bhan
R/o H. No. 32, Village Shahpur Garhi,
Narela, Delhi110040
Offence complained of/charged with U/s 138 Negotiable Instruments Act (or in
short "NIA" or the "Act").
Plea of the accused Pleaded "not guilty".
Final Order Acquitted
Date of Institution 13.05.2015
Date of pronouncement of Judgment 26.03.2022
This is a complaint case filed under the provisions of Section 138 NIA.
BRIEF FACTS
1. Having friendly relations with the accused, complainant advanced him a loan of Rs. 10 lacs at 24% per annum interest for a period of three months in July 2014. In _________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 1/11 discharge of this liability, accused issued a cheque bearing no. 930941 dated 04.02.2015 drawn on State Bank of Hyderabad for a sum of Rs. 10 lacs vide Ex. CW1/A. This cheque upon presentation got dishonored with remarks "payment stopped by drawer" vide returning memo Ex. CW1/B. Legal notice dated 13.02.2015 vide Ex. CW1/C was duly issued despite which the accused failed to make the payment. Hence, the present complaint.
2. Accused was served with the notice u/s 251 Cr. P. C. on 19.01.2016 to which he pleaded "not guilty" and stated that he had been given Rs. 5 lacs by the complainant for investment in some government scheme called "alternative plot slips" and that in return, he handed over the cheque in question as a security to her which she misappropriated later. He moved the application u/s 145 (2) NI Act and elaborated his defence. He stated that he was working as a property dealer and that in June 2014, complainant and her family members had approached him to invest their money in the "alternative plot scheme" for which purpose he had procured two slips of Rs. 5 lacs each one for himself and one for the complainant. Complainant asked the accused to pursue the allotment procedure on her behalf at 2% commission basis and to transfer the title in her name once the procedure was complete. As security, accused issued the impugned cheque in favor of the complainant. Unfortunately, the allotment got rejected by the Land and Building Department in October 2014 and therefore, the investment could not fructify. Complainant demanded return of her money and accused returned the same i.e. Rs. 5 lacs in January 2016. Despite so, the complainant did not return the cheque of the accused and kept avoiding the same on one pretext or the other and later on misused the same to extort money from him.
Accused denied any liability towards the complainant.
_________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 2/11 COMPLAINANT EVIDENCE
3. Complainant examined herself as CW1 and relied upon her evidence affidavit Ex. CW1/1 alongwith the documents such as original cheque; returning memo and legal notice Ex. CW1/A to Ex. CW1/C etc. She reiterated the contents of her complaint and was duly cross examined by the accused.
3.1 During such crossexamination, she denied that she had invested an amount of Rs. 5 lacs through the accused in any 'alternative plot scheme' or that the present cheque had been issued by way of security. She infact stated that she was not even aware that the accused was working as a property dealer. She denied all the questions relating to any investment in such scheme. Regarding her source of income, she stated that she had sold out a plot of land in Sonepat in the year 2011 and placed reliance on copy of a Shapathpatra acknowleding such sale vide Ex. CW1/E. She stated that she used this sum in advancing loan to the accused. She further stated that the sale amount was received in cash and was first saved in post office deposit and later on withdrawn for advancing it to the accused. She accepted that no receipt was taken from the accused at the time of advancing loan and denied having received back any amount from him.
3.2 As Ex. CW1/E were only photocopies of the Shapath Patra, Ikrarnama and Receipt dated 06.12.2012 executed between the complainant/ vendor and the purchaser Usha W/o Ramesh, upon the directions of the Court the original documents including one baynama were brought by the complainant in the Court and same were returned to her after comparing it with the copies and the documents were reexhibited as Ex. C1 (colly) and Ex. C2 (colly).
_________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 3/11 No other witness was examined and CE was closed.
STATEMENT OF ACCUSED
4. Statement of accused was recorded under Section 313 Cr.P.C. on 14.07.2016 wherein he denied all the incriminating evidence against him as well existence of any legal debt. He reiterated that the complainant had invested a sum of Rs 5 lacs in the alternative plot scheme through him but once the allotment was rejecteds she had demanded her money back upon which he had returned her amount in January 2016. He accepted the receipt of legal notice and stated that he had not filed any reply to the same as an oral understanding was arrived at between the parties to settle the matter.
DEFENCE EVIDENCE
5. DW1 Jasraj Singh, Public Relation Inspector, Post Office Narela was summoned by the accused to bring on record the post office savings made by the complainant in the year 2011. He deposed that as per records, no account was found in the name of the complainant in the Post Office, North Division, Delhi and filed his report as Ex. DW1/A in this regard. The witness also deposed that even if the account once opened, had been closed later on, the data would still reflect in their records which was not the case in the present matter. The witness was duly cross examined.
6. DW2 Rajesh Gupta, PRI, Malka Ganj Post Office, Narela was also summoned to produce the post office deposits made by complainant Santra Devi in their Post Office Saving Scheme at Narela. This witness also similarly deposed that as per _________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 4/11 records, no account was found in the name of the complainant in the Post Office, North Division, Delhi and filed the certificate issued by the concerned Superintendant of the Post Office in this regard as Ex. DW2/A. He was duly cross examined wherein he interalia denied the suggestion that he, in collusion with the accused, had filed a false report or that records were not properly maintained by their department.
No other witness was examined in defence and DE was closed.
7. Final Arguments heard. Record perused. Written arguments have also been filed by both sides.
FINDINGS
8. The NIA raises two types of mandatory presumptions in favor of the holder of the cheque - one, u/s 118(a) regarding passing of consideration in transfer of negotiable instrument and two, u/s 139 that a cheque is received for discharge of a legal liability. These presumptions have to be raised as soon as the execution of the cheque by the accused is either admitted or proved by the complainant whereupon the burden shifts upon the accused to rebut these presumptions either by leading direct evidence or in some cases, from the case set out by the complainant himself. The burden may be discharged by the accused by showing preponderance of probablities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In short, the presumption is rebutted as soon as the defence raises a reasonable suspicion in the story of the prosecution. Having said that, it is also equally true that in every criminal case it is essential that the prosecution is first able to stand on its own legs and lay certain foundational facts on the basis of which such presumptions can be drawn.
_________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 5/11
9. To recapitulate, complainant has alleged that she had known the accused from before and advanced him a friedly loan of Rs. 10 lacs for three months @ 24 % p.a. interest and in discharge of this liability, accused issued the impugned cheque which upon presentation got dishnored with remarks " payment stopped by drawer". To prove her case, complainant examined herself as CW1 and relied upon her affidavit Ex. CW1/1 reiterating the aforesaid version. Per Contra, although accused denied receiving any loan from the complainant he accepted the issuance of cheque and his signatures thereon. Once the signatures on the cheque have been admitted by the accused, the mandatory presumptions of law would have to be drawn in favor the complainant and against the accused, shifting the onus upon the accused to rebut the same.
10. The prime defence taken by the accused is that he had not taken any loan from the complainant but that complainant had invested a sum of Rs. 5 lacs in some scheme with him. In order to prove his defence, he did not bring any witness or material on record which could establish either that there was any government scheme regarding allotment of some plots towards which he had applied or that the complainant had made any investment through him in the same. He could have produced atleast some witness or document evidencing any application made by him to the concerned department or any receipt issued thereof or any rejection or objection letter issued from such department but he failed to do so. Infact, he even failed to show that he was running a property dealing business let alone any investment being made by him. All such facts being within the specific knowledge of the accused, the burden of proving the same lay upon him which he failed to discharge.
11. Be that as it may, even though the accused could not bring any positive evidence to prove his defence, he could still probablise the same by poking sufficient holes in the case of the prosecution and could place reliance even on material already available on record. It is a settled proposition of law that the standard of proof which is required _________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 6/11 from the accused to probablise his defence is "prepondereance of probabilities". In the present case, accused has questioned the financial capacity of the complainant and her inability to advance a huge amount of Rs. 10 lacs by way of loan. It is alleged that complainant is only a house wife and her husband is a MCD driver and thus she did not have the means to advance such a huge amount that too in cash. Simultaneously, it is also alleged that complainant has contradicted herself materially by initially stating in her complaint that such a loan had been advanced at a high rate of interest of 24% p.a. and then by later on resiling from the same in her crossexamination by calling it an "interest free" loan. In response to this question, the complainant has relied upon sale documents which are an affidavit, ikraranama and receipt Ex. CW1/E or Ex. C1 (colly) and Ex. C2 (colly) executed in Decemeber 2011 with respect to her property in Sonepat and has submitted that the money received from such sale had been utilised in advancing loan to the accused.
12. No doubt that such "affidavit" acknowledges the sale of some property by complainant to a third person and receipt of consideration thereof, what is interesting to note here is her crossexamination dated 01.03.2017 and 09.05.2017 in respect of the money received from such sale. The relevant portion reads as under : " ...I had taken the consideration amount in cash and for sometime, Rs. 10 lacs were saved in the post - office. I have not filed the documents of post office on record. It is wrong to suggest that I was not having any such amount to advance to the accused or that I am deposing falsely in this regard. It is wrong to suggest that I had not filed the documents of postofficce on record because I had not deposited any money in the post office.
I had withdrawn all the amount of Rs. 10 lacs from the post office. The record must be there in the post office but I do not have copy of the same at this moment.
_________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 7/11 The saving was in my name." (emphasis supplied)
13. It is the own verison of the complainant that she had saved and later on withdrawn money from her post office account to advance the same to the accused. In order to expose the inherent lies in the case of the complainant, accused summoned the concerned officials DW1 and DW2 from the Post Office, North Division who, after going through their records testified that the complainant did not maintain any account with the Post Office. They brought the requisite record Ex. DW1/A and Ex. DW2/A certified by the Superintendant to prove the same. The witnesses were duly cross examined but still their credibility could be not be impeached. Once the accused was able to falsify the claims of the complainant that she had withdrawn money from a Post Office account before lending it to him and thereby raised a question mark on the prosecution version, the onus shifted upon the complainant to prove otherwise. She, however, could not bring any witness or document to the contrary nor could she prove that the defence witnesses were either not credible or that the documents brought by them were not authentic. Instead only bald avernments were made that the witnesses had colluded with the accused and manipulated the records. Thus, the onus that had shifted upon the complainant remained undischarged.
14. In a trial under Section 138 NIA, the standard of proof required by the accused to dislodge the presumptions is not as strict as that required from the complainant to prove her case and the accused has to merely "probabilise" his defence. Unlike complainant, he is not required to prove his case beyond a reasonable doubt and he can prove his defence even by drawing of inferences from the material available on record. In the present case, the complainant stated on oath that she had advanced money to the accused after drawing the sum from her post office account. Accused successfully exposed the lies bespoken by her by bringing positive evidence to the contrary in the form of DW1 and DW2 and thus created a dent in her story. Complainant failed to reverse the same. _________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 8/11 Such being the case, the accused successfully rebutted the mandatory presumptions of law.
15. At this stage, it would be relevant to discuss the various judgments relied upon by the counsel for complainant in support of its case. Same are discussed as below:
(i) M. M. T. C. & Anr Vs Medhcl Chemicals & Pharma Pvt Ltd., (2002) 1 Supreme Court cases 234; Pulsive Technologies Pvt Ltd. Vs State of Gujarat & Ors, Crml.
Appeal No. 1807/2014 decided on 22.08.2014 and Rangappa Vs Mohan, AIR 2010 SC 1898 - By placing reliance upon these cases, it is emphasized by the complainant that in places where the cheque is dishonored for reasons "stop payment instruction", there is an extra burden upon the accused to show that he had funds available in his account at the relevant time, which has not been done in the present case. I am afraid to differ with such interpretation given by the prosecution. The aforestated judgments, while incorporating 'stop payment instructions' as one of the reasons for dishonor to attract the offence u/s 138 NIA, such reason being absent from the specific wordings of the aforestated Section which enumerates only "insufficiency of funds" and "exceeds arrangement with bank" as the grounds, only observe that one of the methods available with the accued to probalise his defence is to show that he had sufficient funds at the time of the presentation of the cheque but for that other valid reasons, he had issued the stop payment notice including that there was no existing debt or liability. It does not in any way put any extra burden on the accused. He can rebut the presumptions by resorting to other means as well. In the present case, accused has been able to rebut such presumptions by creating a strong suspicion over the story of the prosecution.
(ii) C. C. Alavi Haji Vs Palapetty Mohd. & Anr, 2007 B C 533 SC - The present case deals with the requirement of service of legal notice and the consequent duty _________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 9/11 upon the accused to pay the cheque amount within 15 days of service which can exonerate him from any legal consequences u/s 138 NIA. There is no denying the legal proposition laid down in the judgment and it only explains the intent behind the requirement of service of legal notice upon the accused and has no specific application to the facts of the case.
(iii) Krishna P Morajkar VS Joe Ferrao, State of Goa 2013 Law Suit (Bom) 923 - The aforestated High Court of Bombay judgment in crux, emphasizes that the object of Section 138 NIA is to enhance the acceptability and credibility of cheques; that presumption u/s 139 NIA includes the existence of a legally enforceable debt and that the provisions of Income Tax Act can not be invoked to prevent a lender from recovering his money. The present judgment also has no specific application to the facts of the case. Similarly, the judgment laid down in APS Forex Services Pvt Ltd. VS Shakti International Fashion Linkers in Crl. APL. No. 272/2020 decided by the Apex Court on 14.02.2020 also does not apply to the facts of the case and is only generic in nature wherein the drawing of mandatory presumptions of law u/s 139 NIA has been emphasized. In the present case, the presumptions although duly drawn in favor of the complainant, have been rebutted by the accused for the reasons stated in the foregoing paragraphs.
None of the above citations, therefore, have come to aid the case of the complainant.
16. To sum up, in the present case the alleged loan amount was paid in cash. There was no document executed to record the advancement of loan. Although, the accused could not prove his defence of investment made by the complainant, he has succeeded in rebutting the presumption under section 139 of the Act by creating a doubt over the prosecution version which is sufficient to dislodge the presumptions.
_________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 10/11 CONCLUSION
17. In view of the foregoing discussion, the prosecution has failed to prove its case beyond a reasonable doubt and therefore, accused Pawan Kumar S/o Suraj Bhan is acquitted of the offence under section 138 NI Act. Bail bonds and surety bonds stand discharged. Endorsement, if any, stands cancelled. Original documents of the surety, if any, be released as per rules.
DIVYA Digitally by DIVYA signed Announced in Open Court on 26.03.2022. MALHO MALHOTRA Date:
2022.03.26 TRA 16:45:02 +05'30' (Divya Malhotra) MM01/North/Rohini Courts 26.03.2022 _________________________________________________________________________ Case no. 1116/2016. Santra Devi VS Pawan Kumar Page 11/11